Opinion
NO. 01-18-00560-CV
02-05-2019
BERNARD S. WILLIAMS, Appellant v. PATRICE NICOLE PAUL, Appellee
On Appeal from the 425th District Court Williamson County, Texas
Trial Court Case No. 15-2168-F425
Pursuant to its docket equalization authority, the Supreme Court of Texas transferred this appeal to this Court. See TEX. GOV'T CODE ANN. § 73.001 (authorizing transfer of cases).
MEMORANDUM OPINION
Appellant, Bernard S. Williams, proceeding pro se, appeals from the trial court's order granting a no-evidence summary judgment in favor of appellee, Patrice Nicole Paul, on Williams's suit for modification of a child support order. In his sole issue, Williams contends that the trial court erred in granting summary judgment because he presented evidence raising a genuine issue of material fact.
We affirm.
Background
On February 17, 2017, the trial court ordered that Williams, with respect to his minor child, B.Z.W., pay child support of $465.00 monthly, from March 1, 2017 until June 30, 2017, and $507.00 monthly, beginning July 1, 2017 and thereafter, along with medical support.
Subsequently, Williams, citing a material and substantial change in his circumstances based on a decrease in salary at his new job, filed a petition to modify the parent-child relationship, seeking to decrease the amount of child support that he was ordered to pay.
On October 10, 2017, the trial court signed an "Agreed Order Clarifying and Confirming Support Arrearage and Final Order in Suit for Modification," modifying its February 17, 2017 order. The trial court found that "guideline child support" was $507.00 per month, found that a deviation from the guideline was appropriate in this case, and ordered that Williams pay total current child support in the amount of $707.00 per month. The trial court included a judgment against Williams for arrearages in the amount of $4,302.33 and for medical support in the amount of $341.72.
Days later, on October 16, 2017, Williams filed a "First Amended" petition to modify the parent-child relationship, seeking to decrease the amount of child support that he was ordered to pay under the trial court's October 10, 2017 order. In his petition, Williams asserted that he "wishe[d] to provide proof of change of employment/income[,] [a]s well as modify current order in regards to child care and life insurance."
On December 11, 2017, Paul served Williams with interrogatories and requests for production. Subsequently, asserting that Williams's responses were deficient, Paul filed a motion to compel Williams to properly answer discovery and for sanctions, i.e., striking Williams's pleadings and ordering him to pay attorney's fees. The record shows that Paul provided Williams with a detailed list of deficiencies. After a hearing, the trial court granted Paul's motion, ordering that Williams "fully and properly respond" to discovery by February 28, 2018, or the modification suit would be dismissed, and awarding Paul attorney's fees in the amount of $418.00.
After Williams did not answer discovery as ordered, the trial court dismissed the modification suit and ordered that Williams pay attorney's fees as previously ordered. Williams filed a motion to set aside the judgment, asserting that he was not afforded proper notice of the hearing on Paul's motion to compel. The trial court set aside the judgment and reinstated the case.
Paul then filed a motion for summary judgment, arguing that she was entitled to judgment on Williams's motion to modify support because there was no evidence of a material and substantial change in circumstances of the child or of the conservators. In response, Williams filed a "Respondent's Original Answer," in which he "enter[ed] a general denial" and did not attach evidence. After a hearing on May 29, 2018, the trial court granted summary judgment in favor of Paul.
See TEX. R. APP. P. 166a(i); TEX. FAM. CODE ANN. § 156.401.
Any transcript of this hearing was not filed in the appeal.
Summary Judgment
In his sole issue, Williams argues that the trial court erred in granting summary judgment because he presented sufficient evidence of a material and substantial change in his income to raise a genuine issue of material fact.
Standard of Review and Principles of Law
We review a trial court's summary judgment de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005); Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). We take as true all evidence favorable to the non-movant, and we indulge every reasonable inference and resolve any doubts in his favor. Valence Operating, 164 S.W.3d at 661; Knott, 128 S.W.3d at 215. If a trial court grants summary judgment without specifying the grounds for granting the motion, we must uphold the trial court's judgment if any of the asserted grounds are meritorious. Beverick v. Koch Power, Inc., 186 S.W.3d 145, 148 (Tex. App.—Houston [1st Dist.] 2005, pet. denied).
To prevail on a no-evidence summary-judgment motion, the movant must establish that there is no evidence to support an essential element of the nonmovant's claim on which the non-movant would have the burden of proof at trial. See TEX. R. CIV. P. 166a(i); Hahn v. Love, 321 S.W.3d 517, 523-24 (Tex. App.—Houston [1st Dist.] 2009, pet. denied). The burden then shifts to the non-movant to present evidence raising a genuine issue of material fact as to each of the elements challenged in the motion. Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006); Hahn, 321 S.W.3d at 524. A no-evidence summary-judgment may not be granted if the non-movant brings forth more than a scintilla of evidence to raise a genuine issue of material fact on the challenged elements. See Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). More than a scintilla of evidence exists when the evidence "rises to a level that would enable reasonable and fair-minded people to differ in their conclusions." Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997).
Discussion
Texas Family Code section 156.401(a) provides, in pertinent part, that a trial court may modify an order that provides for the support of a child if:
(1) the circumstances of the child or a person affected by the order have materially and substantially changed since the earlier of:
TEX. FAM. CODE ANN. § 156.401(a) (emphasis added). "In determining whether a modification in child-support payments is appropriate, the trial court should examine the circumstances of the child and parents at the time the prior decree was rendered, in relation to the circumstances existing at the time modification of the prior order is sought." Trammell v. Trammell, 485 S.W.3d 571, 576 (Tex. App.—Houston [1st Dist.] 2016, no pet.) (internal quotations omitted); see also Sparks v. Rutkowski, No. 03-17-00452-CV, 2018 WL 3799940, at *2 (Tex. App.—Austin Aug. 3, 2018, no pet.) (mem. op.) (applying Trammell). The burden is on the requesting party to show the requisite change in circumstances. Trammell, 485 S.W.3d at 576.(A) the date of the order's rendition; or
(B) the date of the signing of a mediated or collaborative law settlement agreement on which the order is based[.]
Here, Paul, in her summary-judgment motion, asserted that there was no evidence that her circumstances, or that of B.Z.W. or Williams, had materially and substantially changed since rendition of the prior order. See TEX. FAM. CODE ANN. § 156.401(a)(1)(A); TEX. R. CIV. P. 166a(i); Hahn, 321 S.W.3d at 523-24. The burden then shifted to Williams to present evidence raising a genuine issue of material fact. See Mack Trucks, Inc, 206 S.W.3d at 582; Hahn, 321 S.W.3d at 524.
In response to the summary-judgment motion, Williams filed a "Respondent's Original Answer," in which he "enter[ed] a general denial" and did not attach any evidence. It was incumbent upon Williams, as the party seeking a modification, to present more than a scintilla of evidence of his circumstances, or those of the child or Paul, at the time that the prior order at issue was rendered and the circumstances existing at the time of modification. See, e.g., Sparks, 2018 WL 3799940, at *2-4 (holding that, without evidence of income at time of prior order and income at time of modification, trial court could not determine whether change to income was material and substantial); Trammell, 485 S.W.3d at 573-74, 576-78 (upholding 2014 modification that was supported by father's detailed testimony that his 2011 income of approximately $802,000 had, by 2013, fallen to $255,014, and that was supported by tax returns, W-2s, 1099s, and pay stubs for relevant years, as well as evidence showing that father's monthly gross compensation at time of trial was $20,000); McGuire v. McGuire, 4 S.W.3d 382, 387 (Tex. App.—Houston [1st Dist.] 1999, no pet.) (holding that evidence that father's earnings had decreased significantly since year prior to divorce was sufficient to show material and substantial change in circumstances warranting modification of child support). The record must contain both historical and current evidence of the relevant person's financial circumstances. London v. London, 192 S.W.3d 6, 15 (Tex. App.—Houston [14th Dist.] 2005, pet. denied). Without both sets of data, the court has nothing to compare and cannot determine whether a material and substantial change has occurred. Id.
Although the appellate record appears to contain some evidence of income that Williams attached to other items, Williams neither incorporated this evidence into his summary-judgment response nor mentioned it. "A trial court does not abuse its discretion when it does not consider summary judgment proof to which a movant does not specifically direct the trial court's attention." In re A.J.L., No. 14-16-00834-CV, 2017 WL 4844479, at *4-5 (Tex. App.—Houston [14th Dist.] Oct. 26, 2017, no pet.) (mem. op.) (upholding trial court's no-evidence summary judgment in suit for modification because mother did not direct trial court to specific evidence of material and substantial change in circumstances); Blake v. Intco Invs. of Tex., Inc., 123 S.W.3d 521, 525 (Tex. App.—El Paso 2003, no pet.) (holding that nonmovant must either incorporate evidence or request that trial court take judicial notice of such evidence); Saenz v. S. Union Gas Co. 999 S.W.2d 490, 494 (Tex. App.—El Paso 1999, pet. denied) (holding that, although nonmovant not required to "needlessly duplicate evidence already found in the court's file," he must ensure that evidence is properly before trial court for its consideration in ruling on motion for summary judgment). A trial court is not required to search the record for evidence raising a material fact issue. See Rogers v. Ricane Enters. Inc., 772 S.W.2d 76, 81 (Tex. 1989).
Because Williams did not present any evidence to raise a genuine issue of material fact as to a material and substantial change in the circumstances of a child, a conservator, or other party affected by the trial court's order, we hold that the trial court did not err in granting Paul's motion for summary judgment. See Mack Trucks, Inc., 206 S.W.3d at 582; Hahn, 321 S.W.3d at 524; see also Sparks, 2018 WL 3799940, at *2-4; In re A.J.L., 2017 WL 4844479, at *4-5.
We overrule Williams's sole issue.
Conclusion
We affirm the trial court's judgment.
Sherry Radack
Chief Justice Panel consists of Chief Justice Radack and Justices Goodman and Countiss.